Memorandum submitted by the International
Centre for Trade Union Rights (ICTUR)
INTRODUCTION
1.1 Businesses impact on human rights in
different ways within the UK and abroad. The precise nature of
these impacts depends upon the nature of the business and the
socio-economic, political and human rights situation in the country
concerned.
In the UK businesses have a clear and
direct impact upon the labour rights of their employees: including
trade union rights, such as the right to form and join trade unions,
as well as rights such as equality and principles of non-discrimination.
For more on the domestic situation please have regard to the submissions
prepared by the Institute of Employment Rights.
Overseas, and in the developing world
in particular, the activities of multinational companies can have
a profound influence. Multinationals often dominate industries
in developing countries, with the result that their employment
conditions set the de facto standard for industry-wide or even
generally-applicable terms and conditions. Our submission addresses
specifically the nexus of human rights responsibility, supervision
and enforcement in the context of the overseas activities of UK
businesses.
UK multinationals in particular may have dominant
roles in former colonies. The terms and conditions of employment
set by UK multinationals in such situations can have profound
impacts upon local labour standards not only in the company concerned
but in respect of industry-wide conditions and even in respect
of generally applicable national employment standards. UK companies
have a responsibility to ensure that the role they play in former
colonies in particular is positive, upward, and stabilising.
1.2 An area of particular concern to ICTUR
is the role of global companies in relation to the internationally
protected rights of workers to join trade unions for the protection
of their interests. This right is recognized by a host of international
human rights treaties, including the UN Covenant on Economic,
Social and Cultural Rights, along with ILO Conventions 87 and
98, in addition to a host of regional instruments such as the
European Convention on Human Rights and the European Social Charter.
Also important are the OECD Guidelines for Multinational Enterprises,
while reference might also be made to the UN Global Compact, where
these rights are also recognized. Quite apart from these international
legal instruments, the role of trade unions in TNCs is crucial:trade
unions locally, nationally, regionally and globally provide a
measure of accountability in the exercise of corporate power,
wherever that power may be exercised; trade unions provide a voice
for workers and ensure that workers' interests are fully considered
before any major decisions are taken; and trade unions help to
drive up standards and prevent the exploitation of the weak and
vulnerable. We illustrate the problems of British business and
respect for human rights standards by giving an account of the
activities of what is thought to be the United Kingdom's largest
global company, certainly in terms of the number of people employed
throughout the world.
CASE STUDY:
G4S
2.1 G4S is a major global security company,
created by a merger of Group 4 Falck and Securicor in July
2004. The company is British based, it has been extraordinarily
successful, and it is the largest employer quoted on the London
Stock Exchange, with a secondary stock exchange listing in Copenhagen.[362]
Although it has its headquarters in the United Kingdom, G4S has
operations in over 110 countries and over 585,000 employees.
The company is thought to be the second or third largest private
sector employer in the world, and it is the largest private employer
in Africa. Group 4 Securicor operates in 18 African
countries: Botswana, Cameroon, Central African Republic, Democratic
Republic of the Congo, Gambia, Ghana, Ivory Coast, Kenya, Lesotho,
Malawi, Morocco, Mozambique, Namibia, Sierra Leone, South Africa
Tanzania, Uganda, and Zambia. In 2005. Profit margins from "New
Markets"which includes Latin America and Asia, as
well Africahave been reported as being 60 % greater
than its European margins. According to the company's annual report
for 2008, Group turnover increased by 22% to £5.94 billion
(US $8.85 billion), pre-tax profits rose by 23% to £416.4 million,
and recommended total dividend per share increased by 30%.[363]
By way of contrast, according to the CIA, the GDP of Malawi -
one of the countries in which the company operates - was only
US $ 11.56 billion in 2007.
2.2 The company courted controversy for
several years in the recent past because of labour standards in
a number of countries. Despite boasting an impressive Business
Ethics Policy (at the heart of which was a commitment to freedom
of association and the right to collective bargaining in accordance
with local legislation and practice), allegations were made by
UNI (a global trade union federation) that these commitments were
not always observed in practice. It was allegedfor examplethat
in Kenya the company refused to recognise the Kenya Guards and
Allied Workers' Union, notwithstanding a court order in 2003 that
security firms do so 'either as an Association or individually'.[364]
Legal proceedings in the following year revealed that there was
by then 'no collective agreement',[365] and
in 2005 the union was still complaining that it had not been
recognised by the company, despite claiming a majority of the
employees in membership. It has also been alleged that
In Uganda, the Amalgamated Transport
and General Workers' Union was refused recognition by G4S, despite
the fact that a majority of the employees at the G4S subsidiary
voted to form a union. It was claimed that 'G4S used a variety
of delaying tactics, from busy schedules to a change in the company's
name and address, to avoid recognising the union', and that 'in
stark contrast', the other major private security firms in Uganda
had recognised the union and negotiated with it as a group 'to
raise standards in the industry';[366]
In the Democratic Republic of the Congo
(where G4S was said to be not only the largest private security
firm but also the only multinational company operating in the
country), it was claimed that the union Sythac had made repeated
attempts to meet the G4S subsidiary to discuss union recognition.
Again, it is reported that 'G4S [had] consistently put them off,
refusing to meet with them or committing to appointments at G4S
offices and then failing to make the proper person available at
the time of the appointment'.[367]
2.3 A particularly notorious case involved
Indonesia, wherea serious dispute broke out in 2005 during
a merger between two security services entities, PT Securicor
Indonesia and Group 4 Falck. PT Securicor Indonesia refused
to negotiate with the union in relation to the merger prompting
the union to call a strike involving 600 workers. According
to the ILO Freedom of Association Committee, in the course of
the dispute, 'the employer committed several acts of anti-union
discrimination and harassment, including: preventing the union
president and officials from entering company premises; dismissing
238 union officials and members in May 2005, refusing to
reinstate them in spite of several court orders to that effect;
and attempting to coerce and intimidate union members by calling
their families'.[368]The
strike attracted critical media coverage in the United Kingdom,[369] it
led to mass demonstrations against the company outside the British
Embassy in Jakarata, and 'the rather difficult strike in Indonesia'
was raised in the House of Commons by Kitty Ussher MP.[370]
The matter ended up before the Supreme Court of Indonesia,[371] which
ordered the company to reinstate and pay compensation to workers
who had been dismissed for taking part in a strike that the Court
found was legal. Moreover, a complaint was made by the Indonesian
union ASPEK against the government of Indonesia to the ILO Freedom
of Association Committee, alleging that there had been a breach
of ILO Convention 87 (Freedom of Association and Protection
of the Right to Organise). Although the dispute was settled by
an agreement on 26 July 2006, the Freedom of Association
Committee reported as follows
960. The Committee observes from the complainant's
allegations and the Government's reply that: (i) 308 workers
were dismissed by PT Securicor Indonesia in May 2005 for
having staged a strike as of 25 April 2005; (ii) all instances,
including the P4P, the High Court for State Administrative Affairs
and the Supreme Court found that the strike which began on 25 April
2005 was legal and that the employer should reinstate the
dismissed workers and pay wages owed; (iii) 24 workers were
reinstated on 27 December 2005 pursuant to the order
issued to that effect by the Supreme Court after hearing the case
in the last instance; (iv) on 28 July 2006 the two parties
reached an agreement by which they agreed to terminate the employment
relationship between the enterprise and the workers concerned,
in return for payment of full compensation.
961. While taking due note that the two parties
have finally reached a settlement agreement, the Committee wishes
to recall that no one should be penalized for carrying out or
attempting to carry out a legitimate strike (Digest of decisions
and principles of the Freedom of Association Committee, fifth
edition, 2006, para. 660). In this respect, the Committee requests
the Government to specify the circumstances under which only 24 out
of 308 workers were finally reinstated pursuant to their
dismissal for having participated in the strike which began on
25 April 2005.
962. The Committee further notes with regret
that the Government does not reply to the complainant's allegations
concerning the repeated summons of the union President Fitrijansjah
Toisutta and members Tri Muryanto and Edi Putra for interrogation
by the police and the Prosecuting Attorney as well as the pressing
of charges against them on 7 July 2005 for the crime
of committing "unpleasant acts" against the company.
The Committee recalls that measures depriving trade unionists
of their freedom on grounds related to their trade union activity,
even where they are merely summoned or questioned for a short
period, constitute an obstacle to the exercise of trade union
rights (Digest, op. cit., para. 63). The apprehension and systematic
or arbitrary interrogation by the police of trade union leaders
and unionists involves a danger of abuse and could constitute
a serious attack on trade union rights (Digest, op. cit., para.
68). Recalling that the strike which began on 25 April 2005 was
declared legal by the competent authorities, the Committee emphasizes
that no one should be deprived of their freedom or be subject
to penal sanctions for the mere fact of organizing or participating
in a peaceful strike (Digest, op. cit., para. 672). The Committee
requests the Government to indicate whether the charges brought
against the union President Fitrijansjah Toisutta and members
Tri Muryanto and Edi Putra for committing "unpleasant acts"
against the company are pending before the courts or whether the
charges have been dropped. In the event that this matter is still
before the courts, the Committee requests the Government to institute
an independent inquiry into this matter and, if it is found that
the charges were brought for having organized or participated
in the peaceful strike which began on 25 April 2005, to ensure
that they be dropped immediately and to keep it informed of developments
in this respect.
963. The Committee also notes with regret that
the Government does not reply to the allegations concerning acts
of harassment against union members and their families, including
phone calls at their homes by the company, in the context of the
merger between PT Securicor Indonesia with Group 4 Falck
and the new management's refusal to negotiate the terms and conditions
of employment of the employees, as well as the transfer of a certain
number of the employees under new management. The Committee recalls
that the Government's obligations under Convention No. 98 and
the principles on protection against anti-union discrimination
cover not only acts of direct discrimination (such as demotion,
dismissal, frequent transfer, and so on), but extend to the need
to protect unionized employees from more subtle attacks which
may be the outcome of omissions. In this respect, proprietorial
changes should not remove the right to collective bargaining from
employees, or give rise to direct or indirect threats against
unionized workers and their organizations (Digest, op. cit., para.
788). Furthermore, acts of harassment and intimidation carried
out against workers by reason of trade union membership or legitimate
trade union activities, while not necessarily prejudicing workers
in their employment, may discourage them from joining organizations
of their own choosing, thereby violating their right to organize
(Digest, op. cit., para. 786).
964. Finally, the Committee notes with regret
that the Government does not reply to the serious allegations
made with regard to the Government's failure to ensure an effective
mechanism of protection against acts of anti-union discrimination.[372]
2.4 It is true that the complaint by ASPEK
was against the government of Indonesia and not against the company.
The company, however, can hardly escape responsibility for conduct
that sits uneasily with its Business Ethics Policy commitment
to freedom of association. Although it is true that it is the
law of Indonesia that was under scrutiny by the Freedom of Association
Committee (not for the first time), it was the company's conduct
that provoked the complaint, it was the company which chose to
take advantage of the legal regime, and it was the company's activity
that led to the critical conclusions of the Committee in this
case. Yet it is not to be imagined that the allegations against
G4S on freedom of association were confined to Africa and Asia
(with Nepal being another bone of contention identified by UNI).[373]A
major issue was the conduct of Wackenhut, the company's US subsidiary.
Several complaints against Wackenhut were made by UNI, though
in one case the company was found by the National Labor Relations
Board in the USA to have been in violation of the National Labor
Relations Act 1935.Thiswas related to anti-union conduct by the
employer after an attempt by the union (SEIU) to organize security
guards at the IMF building in Washington DC.The company was ordered
to cease and desist its anti-union activities following an NLRB
finding that
By telling employees that the International Monetary
Fund would respond negatively if employees formed a union, telling
employees that the International Monetary Fund contract prohibited
unions, threatening employees with the loss or cancellation of
the International Monetary Fund contract, as well as the loss
of their jobs, if the employees unionized, telling employees that
it was aware that they had signed union authorization cards, telling
employees that it was nonunion, telling [one employee] that he
should transfer to [another] worksite if he wanted to continue
his union activity and then asking him whether he intended to
continue with union activity, standing next to or near [a second
employee] on public property as she attempted to distribute union
literature to employees arriving for work, and asking employees
about the union activities of other employees, the Respondent
violated Section 8(a)(1) [of the National Labor Relations Act].[374]
OECD GUIDELINES
3.1 A detailed complaint was eventually
lodged against G4S under the OECD Guidelines by Union Network
International (a global union federation) on 12 November
2006.[375]
The complaint detailed a wide range of alleged shortcomings from
around the world relating to what was seen to be a failure of
the company to 'contribute to economic, social and environmental
progress with a view to achieving sustainable development' (as
provided for in Chapter II, para 1), and to 'respect the right
of their employees to be represented by trade unions' (as provided
for in Chapter IV, para 1(a)) of the OECD Guidelines).The complaint
the company had 'chosen to violate national law and drive down
standards across the world', was long and detailed and addressed
specifically alleged violations in Malawi, Mozambique, Greece,
the United States, Israel, Uganda, the Democratic Republic of
the Congo, and Nepal. These were said to be among the most egregious
cases from around the world, it being claimed also that workers
from South Africa, Cameroon, Kenya, India, Indonesia, Morocco,
Panama, and other nations 'have gone on strike against G4S or
protested over poor pay and conditions within the last year'.
The complaints were wide ranging, from low pay, long hours, failure
to pay for work done, failure to make severance payments,and failure
to make back awards in line with court judgments. In the case
of Malawi, UNI claimed that this was one of the ten poorest countries
in the world with G4S guards being paid less than $20 a month,
a wage claimed not to 'provide for their basic needs'.[376]
3.2 The OECD Guidelines for Multinational
Enterprises (the Guidelines) were first agreed in 1976, following
public concern that multinational enterprises were becoming too
powerful and unaccountable. The Guidelines may not be binding
in a legal sense at the international level, but they are not
optional for corporations. Governments have committed themselves
to respecting the principles and have established complaints mechanisms
and supervisory procedures to this end. Within the parameters
of its obligations to the OECD the UK is obliged to ensure implementation.
Key provisions of the Guidelines have already been referred to
in the preceding paragraph, and it is important to emphasise that
unlike many voluntary corporate codes, the OECD Guidelines (i)
explicitly adopt all four of the core ILO principles recognised
in the ILO Declaration on Fundamental Principles and Rights at
Work (1998), as well as (ii) embracestandards on matters which
have been excluded from the ILO Declaration (such as minimum conditions
of employment and health and safety at work).On freedom of association,
the Guidelines require enterprises 'within the framework of applicable
law, regulations and prevailing labour relations and employment
practices' to
respect the right of their employees to be represented
by trade unions and other bona fide representatives of employees,
and engage in constructive negotiations, either individually or
through employers' associations, with such representatives with
a view to reaching agreements on employment conditions.
Enterprises are also expected to 'provide facilities
to employee representatives as may be necessary to assist in the
development of effective collective agreements', and 'provide
information to employee representatives which is needed for meaningful
negotiations on conditions of employment'.
3.3 Since the 2000 revision of the
OECD Guidelines for Multinational Enterprises, all adhering governments
have established National Contact Points (NCPs). The NCPs have
a two-fold mandate: to promote the Guidelines and to facilitate
complaints from a variety of stakeholders, notably trade unions
and NGOs, concerning alleged non-compliance with the Guidelines
by companies registered in or operating from their countries.
Over the past year the UK NCP has been substantially re-organised.
It now takes the form of a bipartite body, comprising two government
departments. The OECD's Trade Union Advisory Committee has consistently
noted that 'tripartite NCPs have generally been more effective
than others', referring specifically to the incorporation of trade
unions.Under the new UK NCP structure a trade union representative
has a position on an NCP advisory panel. The Report of the UN's
Special Representative on Human Rights and TNCs specifically endorsed
the OECD Guidelines as a useful mechanism for addressing the Business
and Human Rights agenda. But the Special Representative noted
also that the Guidelines have 'too often failed to meet this potential'[377].
"The NCPs are potentially an important vehicle
for providing remedy. However, with a few exceptions, experience
suggests that in practice they have too often failed to meet this
potential. The housing of some NCPs primarily or wholly within
government departments tasked with promoting business, trade and
investment raises questions about conflicts of interest. NCPs
often lack the resources to undertake adequate investigation of
complaints and the training to provide effective mediation. There
are typically no time frames for the commencement or completion
of the process, and outcomes are often not publicly reported.
In sum, many NCP processes appear to come up short"[378].
3.4 In the case of the G4S complaint, however,
the procedure appears to have worked well, and there are lessons
to be learned for future cases. For the first time in the history
of the office, the UK NCP appointed an arbitrator, John Mulholland
to manage a formal mediation and conciliation process. Mr Mulholland
brought the parties together in a series of meetings which resulted
in a voluntary settlement, and to the conclusion of a global framework
agreement. It would be a mistake to exaggerate the importance
of this process, as other factors were at work in helping UNI
secure a global agreement with the company, including the global
campaign against the company. Nevertheless, it would be quite
wrong to under-estimate the work of the NCP in the United Kingdom,
with Christy Hoffman from UNI advising us that
Initially, the OECD process legitimized our complaints
about the G4S global operations and this was a very important
element. Subsequently, the mediationmeant that both sides in the
dispute had to sit down face to face, peel away the rhetoric and
try to grapple with some difficult problems which affected thousands
of workers.Once some good will was established, the step towards
a global relationship for handling similar issues in the future
was a natural one. It is possible that we would have reached a
global agreement in any event, but the role of the OECD mediator
helped to speed up the process.A critical element of the parties'
willingness to negotiate was the power of the mediator to issue
a recommended settlement, which would have been difficult for
either party to reject. Without that authority, I am less confident
that the process would have beeneffective.
THE GLOBAL
FRAMEWORK AGREEMENT
4.1 Although we began this submission with
an account of the allegedly controversial conduct of G4S, the
matter did have a good outcome, a global framework agreement being
concluded between G4S, UNI and the GMB (the British trade union
with which G4S has a recognition agreement) on 11 December
2008. Indeed, this is thought to be the first such agreement between
a British based multinational and a global union federation, though
UNI has posted 22 such agreements on its website with a range
of other (European based) multinational corporations. These include
Carrefour, Danske Bank, and France Telecom.[379]
These agreements first emerged in the mid 1990s, with a landmark
deal being struck by another global union federation (the International
Union of Foodworkers) and Accor.[380]
These agreements - which are in some respects a response to skepticism
about unilateral and voluntary company codes of conduct, which
now litter the multinational corporate scene, and which are largely
discredited as unenforceable pious declarations of good intent
-typically commit the companies concerned to respect various labour
standards (usually the ILO standards) throughout their global
operations. The G4S agreement is an advanced version of the genre,
and to that extent it is to be highly commended, though the campaign
to secure the agreement was hard - fought, raising questions about
the role of the State in encouraging or requiring its multinational
companies to negotiate and conclude agreements of this kind as
a matter of good practice rather than as a resolution of a transnational
industrial dispute.
4.2 Under the term of the agreement the
company undertakes to respect rights established through the core
labour standardsof the ILO 'where legally possible', these rights
being defined as Conventions 87 and 98 (freedom of association);
29 and 105 (forced labour); 138 and 182 (child
labour); and 100 and 111 (discrimination at work). So
far as the first of these is concerned, the agreement proceeds
in some detail to commit the company to support 'the rights of
employees to join and be represented by a union of their own choosing',
and to work with UNI in defined ways 'to support these rights'.
These defined ways include
G4S will not oppose the right of employees
to join or not to join a trade union, and on request will 'communicate
to employees that they are entitled to a free choice over whether
or not to join and become active in a union';
Both G4S and UNI committed to work with
national affiliates and managers in order to enable freedom of
association to be exercised in a non confrontational environment,
avoiding misunderstanding and minimizing conflict';
G4S agreed 'specific access arrangements
for local unions to explain the benefits of joining and supporting
the union', any such access to vary according to 'local legal
and practical considerations';
G4S agreed to recognize 'representative
and legitimate trade unions', and to this end the agreement provided
that 'the parties should agree a fair and expeditious system for
checking support for the union'.
The agreement makes it explicit that freedom
of association includes the 'right of unions to be recognized
for the purposes of collective bargaining'.
4.3 In addition to questions of trade union
membership and recognition, the agreement also addressed a wide
range of other employment related matters, the company undertaking
to respect the OECD Guidelines (which as already pointed out,
go some way beyond the ILO Declaration of 1998). Thus, it is expressly
stated that terms and conditions of employment for each country
in which G4S operates 'will be at least as favourable as the legal
minimum standards set out in each country for working hours, pay,
health & safety and holidays'. The agreement also provides,
however, that 'over time', the parties to the agreement 'wish
to drive up terms and conditions for G4S employees', to ensure
not only that the company attracts the best people but also that
it 'has a positive impact on the wider communities in which it
operates'. Alongside this commitment to comply with the law and
the aspiration to do better, there is a parallel commitment that
'negotiated terms and conditions should provide at least a living
wage while securing a work life balance for employees'. One problem
recognized in the agreement is the competitive nature of the business
in which the company operates and its perceived need to maintain
its market share.Here the agreement addresses the problem of high
standards leading to G4S being undercut by its competitors which
may not be committed to principles of this kind. As a result the
agreement provides that 'the local union and management team will
develop a joint strategy and action plan to monitor and raise
standards among all of the companies in the market and create
an environment in which G4S will be able to raise standards without
compromising its competitive position'.
4.4 Finally, the agreement also deals with
implementation and the resolution of disputes between the parties.
Under the terms of the agreement G4S accepts, first the need for
transparency and awareness, it being provided that all three parties
'jointly commit to publicise the agreement through the union membership
and corporate structure respectively''. Secondly, G4S accepts
responsibility for its implementation across the business, and
undertakes to ensure that managers 'support the rights' it establishes.
Any serious contraventions of the agreement by managers are to
be dealt with under the appropriate G4S disciplinary procedure.
Thirdly, it is recognized that their may be disputes about the
interpretation or application of the agreement, and a procedure
is established for resolving such disputes. The procedure is a
typical industrial relations procedure, with disputes to be addressed
initially at the local level, working up to the special review
procedure established by the agreement, which may, if unable to
resolve the dispute, refer the matter to a 'neutral arbiter to
find a mediated solution'. Fourthly, the parties agreed to meet
regularly (twice a year) to consider progress under the agreement
under the aegis of the Review Meetings for which provision is
made in an Appendix. Finally, the agreement is stated unequivocally
not to be legally binding, a provision which is consistent with
the normal practice of collective agreements in British law (albeit
unusual in other legal systems). The clearly expressed statement
to this effect is already implied by law, assuming that the agreement
falls within the definition of a collective agreement under the
Trade Union and Labour Relations (Consolidation) Act 1992 (sections
178 and 179).
CONCLUSION
5.1 ICTUR believes that a number of important
lessons can be learned from the experience of this particular
story, which as we happily acknowledge has had a good ending (so
far). The starting point, however, is that the allegations against
the company, the role of the OECD Guidelines, and the concluding
of a global framework agreement arose in the context of the changing
global situation in which legal, political and economic power
is moving from nation states to TNCs. The current economic downturn
may offer some respite from this development, but is unlikely
to reverse it. Yet while power is gravitating inexorably to a
transnational plain, so international legal standards (such as
core ILO Conventions) remain addressed to national governments,
which may not be powerful enough to take on the TNCs operating
in their territory, with the annual turnover of some of the TNCs
exceeding the GDP of many of the countries in which they operate.[381]
This suggests to us that there is a need for greater control over
TNCs by national law, but more importantly a role for the better
regulation of such bodies in international law. If it is possible
to contemplate the global regulation of the banking industry,
it ought also to be possible to contemplate the regulation of
the employment conditions of TNCs, at least to the extent of ensuring
that these accumulations of economic power comply with minimum
international labour standards.
5.2 As a minimum, ICTUR believes that British
based TNCs should be required to accept as a matter of law that
they have human rights obligations, and as a corollary to adopt
Business Ethics Policies. However, these policies should be required
to comply with prescribed legal standards (notably the OECD Guidelines),
and they should be subject to independent scrutiny and supervision
on a regular basis.The human rights reports of individual companies
should be published, and appropriate penalties should be contemplated
for those companies found to be in serious breach of human rights
obligations. In addition, ICTUR believes that any such obligation
should coincide with a strengthening of the complaints mechanisms
under the OECD Guidelines. Although the Guidelines have been strongly
criticized for a number of reasons, they were shown to have played
a valuable role in the G4S case, though we are under no illusion
that the union (UNI) came in to the process from a position of
considerable strength, having conducted an effective transnational
campaign against the company. Nevertheless, it is important to
embrace some of these criticisms with a number of initiatives:
(i) the government ought to make the guidelines more visible;
(ii) the government should offer more in-house company training
and education about the guidelines; (iii) the ILO principle of
tri-partism should be at the heart of administration of the guidelines
in the United Kingdom (with the government's interest represented
by DfD as well as BERR); (iv) an office independent of government
should be established for the operation, administration and supervision
of the guidelines; and (v) the development of dispute resolution
mechanisms of the kind deployed in the G4S complaint should be
continued.
5.3 More fundamentally, however, steps need
to be taken to require TNCs to enter into agreements with GUFs,
just like companies operating at national level can be required
by national law to enter into recognition agreements with representative
trade unions. These latter provisions were introduced in the United
Kingdom by the Employment Relations Act 1999 (and they have
parallels in other countries), and are now strongly reinforced
by the decision of the European Court of Human Rights in Demir
and Baykara v Turkey,[382] in
which the Grand Chamber appears to hold not only that the right
to collective bargaining is now an essential feature of the right
to freedom of association under article 11 of the ECHR, but
that States are under a duty to have in place a collective bargaining
procedure that complies with minimum international labour standards.
As the Court pointed out in a crucial passage in its its judgment:
The absence of the legislation necessary to give
effect to the provisions of the international labour conventions
already ratified by Turkey, and the Court of Cassation judgment
of 6 December 1995 based on that absence, with the resulting
de facto annulment ex tunc of the collective agreement in question,
constituted interference with the applicants' trade-union freedom
as protected by Article 11 of the Convention (Emphasis added).[383]
This suggests to us that it will be difficult
for an incoming Conservative government to repeal the existing
procedure without putting something in its place, and that business
friendly aspects of the existing procedure are ripe for challenge
in the courts with a view to their removal (such as the arbitrary
denial of collective bargaining rights to workers employed in
businesses with less than 21 workers).[384]
5.4 A parallel legal obligation of TNCs
to deal with GUFs could emerge in one of two ways:
in the short term, as a unilateral act
of the British Parliament to introduce a procedure under domestic
law which requires TNCs headquartered in the United Kingdom not
only to develop and implement the Business Ethics Policies referred
to in paragraph 5.2 above, but to do so with the negotiated
agreement of an appropriate GUF at the request of the latter;
in the long term, steps could be taken
to initiate and support a long overdue recognition in international
law the right of GUFs to enter into transnational bargaining with
TNCs about compliance with international labour standards.[385]At
the present time, international labour law is at a very primitive
stage of development, drafted for an economy in the mid 20th rather
than the early 21st century.
There is thus a need to complement existing
international labour standards, with measures which guarantee
a right to organize, a right to collective bargaining and a right
to collective action, at transnational level. The G4S experience
provides a compelling reason for these international standards
to be revised, to reflect the world as it is now, rather than
the world as it was sixty years ago. It ought to be possible to
secure a global framework agreement as a matter of corporate obligation
underpinned by international law, rather as a result of transnational
trade union pressure.
Daniel Blackburn (Director)
K D Ewing (Vice-President)
1 May 2009
362 G4S, Annual Report (2008). Back
363
Ibid. Back
364
Kenya Guards and Allied Workers' Union v Security Guard Services
and Kenya Union of Commercial, Food and Allied Workers (Cause
No 70/2002. Industrial Court of Kenya, p 22. Back
365
Kenya Guards and Allied Workers' Union v Factory Guards Ltd (Cause
No 8/2004, Industrial Court of Kenya), p 17. Back
366
UNI, Submission to R W Box, UK National Contact Point for OECD
Guidelines for Multinational Enterprises, 12 December 2006,
p 6. Back
367
Ibid. Back
368
ILO Freedom of Association Committee, Complaint against the Government
of Indonesia presented by the Indonesian Association of Trade
Unions (ASPEK Indonesia) Report No. 348, Case No. 2494, para 959. Back
369
See Guardian, 12 August 2006. Back
370
House of Commons, Public Accounts Committee, 15 March 2006,
Q 75.For the company response, see ibid, Q 78. Back
371
UNI, Submission, above, p 10.It is claimed there that while 'G4S
eventually, under international pressure, accepted [the] Supreme
Court decision and fulfilled its legal obligations to its workers,
it refused to meet these obligations for over a year'. Back
372
ILO Freedom of Association Committee, Complaint against the Government
of Indonesia presented by the Indonesian Association of Trade
Unions (ASPEK Indonesia) Report No. 348, Case No. 2494. Back
373
UNI, Submission, above, p 7. Back
374
Wackenhut Corporation v SEIU, Case 5-CA-31927 (20 April
2005). Additional cases are cited in UNI, Submission, above, pp
8 - 10. Back
375
UNI, Submission, above. Back
376
Ibid, p 4. Back
377
J Ruggie, Protect, Respect and Remedy: A Framework for Business
and Human Rights: Report of the Special Representative of the
Secretary-General on the issue of Human Rights and Transnational
Corporations and other Business Enterprises, A/HRC/8/5, 7 April
2008,paras 98-99. Back
378
Ibid. Back
379
For a study of some such agreements, see K D Ewing, 'International
Regulation of the Global Economy - The Role of Trade Unions',
in B Bercusson and C Estlund (eds), Regulating Labour in the Wake
of Globalisation (2007), ch 10. Back
380
See J Wills, 'Bargaining for Space to Organise in the Global Economy:
A Review of the Accor - IUF - Trade Union Rights Agreement' (2002)
9 Review of International Political Economy 675 - an
outstanding study. Back
381
See S Haseler, The Super-Rich - The Unjust New World of Global
Capitalism (2000). Back
382
Application No. 34503/97, 12 November 2008. See also Enerji
Yapi-Yol Senv Turkey, 21 April 2009 (ECtHR recognises
the right to strike under ECHR, article 11), with potentially
important implications for litigation under the Human Rights Act
1998. Back
383
Ibid, para 157. Back
384
See ILO, Committee of Experts, Individual Observation Concerning
Right to Organise and Collective Bargaining Convention, 1949 (No
98) United Kingdom (2009) (raising questions about a number of
aspects of the trade union recognition procedure that would now
seem ripe for challenge in the light of Demir and Baykara). Compare
R (NUJ) v CAC [2005] EWCA Civ 1309. Back
385
See K D Ewing and T Sibley, International Trade Union Rights for
the New Millenium (ICTUR/IER, 2000). Back
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